Dear NCC Commissioners:
I wish to join other Zambians in acknowledging your extraordinary effort, determination and commitment to review the Republican constitution and give our beloved country a new constitution that is expected to stand the test of time.
In this connection, I wish to make a few comments and suggestions designed to make the new constitution more acceptable to the majority of Zambians, and more credible in the eyes of the international community.
1. The Preamble: The first three paragraphs of the Preamble should read as follows:
We, the people of Zambia, by our representatives assembled in our Parliament,
Acknowledge the supremacy of God Almighty;
Uphold the right of every person to enjoy that person’s freedom of conscience or religion; …
The Republican constitution should be a neutral document that should not appear to discriminate against atheists or pagans, or those who believe in Islam, Judaism, Buddhism, Hinduism, or Jainism. All these segments of Zambian society have a genuine stake in the Republican constitution and, therefore, deserve to be respected in spite of the fact that they are not currently as large as their Christian counterparts.
2. Christian Values and Principles (Article 16): This Article should be removed because “directing the policies and laws towards securing and promoting Christian values” or beliefs would be inconsistent with “upholding the right of every person to enjoy that person’s freedom of conscience or religion” that is enshrined in the Preamble. It is also not consistent with what is enshrined in Article 96(2)(a) of the Bill, which states that a political party shall not be founded on a religious basis, among other things.
If it were permissible for the national government to generate “policies and laws towards securing and promoting Christian values …,” why would it be wrong for a political party to fashion its existence and contemplated policies and laws that would have a religious bearing?
If there is a compelling and absolute need for this Article to be retained, however, the “Christian Values and Principles” will need to be specifically defined in the same manner as Article 10 (Political Values, Principles and Objectives), Article 13 (Socio-Economic Values, Principles and Objectives) and Article 15 (Cultural Values, Principles and Objectives) are defined.
3. Promotion of Sport (Article 19): This Article states that “The Government shall promote recreation and sports for the citizens.” It could more appropriately and logically be incorporated into Article 13 (Socio-Economic Values, Principles and Objectives).
4. Qualifications of Presidential Candidates (Article 108): The requirements that presidential candidates should have a bachelor’s degree as a minimum academic qualification, and to have been resident in Zambia for 10 consecutive years preceding any given presidential election are clearly designed to exclude certain individuals from contesting the Republican presidency.
It is obvious that these two clauses could not have been recommended by the NCC if the MMD presidential candidate in the 2011 general elections -- that is, Rupiah Banda -- did not have a degree and had been working or studying in a foreign country over the last 5 or so years.
The degree requirement, for example, is undesirable and outrageous for the following reasons:
(a) It is not based on evidence from Zambia or anywhere else in the world suggesting that a president’s competence is directly related to his or her academic qualifications. In other words, it is mainly based on hunches rather than on facts!
(b) There is no academic degree offered anywhere in the world which can equip an individual with the qualities that are needed in political leadership, such as emotional stability, patriotism, selflessness, fair-mindedness, patience, compassion, tolerance, respect for the rule of law, and the ability to make compromises with people who have dissenting views.
(c) Most academic degrees are not designed to equip students with the requisite knowledge and skills relating to political or national leadership.
(d) The number of years which have passed from the year someone obtained a degree to the present reflects on the relevance of the degree involved. A degree obtained during the 1980s, for example, is generally useless if the holder is not engaged in teaching or other professions which require the application of the knowledge and skills acquired during the pursuit of the degree.
(e) The Republican president appoints qualified advisors to provide him or her with decision inputs in dealing with legal, economic, political, and other matters.
(f) The Republican president is expected to appoint competent government ministers and charge them with the responsibility of advising him or her on matters relating to national projects and programs, and spearheading the implementation of such projects and programs.
(g) The clause, if it is eventually included in the new Republican constitution, will inevitably require all office bearers (including the vice president) who are constitutionally expected to take over the presidency under special circumstances to be holders of academic degrees. And
(h) The kinds of national policies, projects and programs a presidential candidate promises to pursue are more important than his or her educational attainments.
There is, therefore, a need to retain Article 123 (1) (e) of the Willa Mung’omba draft constitution, which states that a person would only be qualified to be a presidential candidate if he or she had obtained the minimum academic qualification of a Grade 12 certificate.
With respect to the 10-year residence requirement, what is really the rationale for such a Clause? What is it supposed to achieve?
There are many reasons why Zambians temporarily reside in foreign countries, such as to pursue studies, to work for the Zambian government in foreign missions, to work at foreign-based branches of companies registered in Zambia, to pursue investment opportunities, or to seek employment due to the widespread unemployment currently obtaining in the country.
These are all good reasons why some Zambian citizens have, now and again, found themselves temporarily residing in foreign countries. Why, then, should their native country’s constitution deny them the opportunity to vie for the Republican presidency?
There is a need to remove this requirement because it discriminates against citizens who temporarily live in foreign countries for good reasons.
Over the years, the people’s call for a non-discriminatory Republican constitution that is expected to stand the test of time has been loud and clear. Unfortunately, those who are entrusted with the noble task of delivering such a constitution to the people seem to have personal and/or partisan stakes in the constitution-making process.
I, therefore, wish to urge each and every member of the NCC to heed the people’s call for a Republican constitution that will meet their needs and expectations in order to save financial and material resources that are likely to be devoted to another constitutional review commission in future.
Thus far, Zambia has wasted a good portion of its meager resources on financing the Chona Constitution Commission, the Mvunga Constitution Review Commission, the Mwanakatwe Constitution Review Commission, and the Mung’omba Constitutional Review Commission. There is, therefore, a need for the NCC to put personal and partisan interests aside and give the people a more acceptable constitution this time around.
5. Appointment of MPs to Executive Positions: The Bill requires that the Vice President, Provincial Ministers and Deputy Ministers should be appointed from Members of Parliament (Articles 128, 130, 131 and 132). This is an outdated and backward requirement for a burgeoning democratic system like ours.
We, therefore, need Articles and/or Clauses which would provide for the appointment of the Vice President, Provincial Ministers and Deputy Ministers from Zambians who are qualified to be elected as MPs, but who are not MPs. Such Articles and/or Clauses are important for the following reasons:
(a) They can afford a Republican president or President-elect a larger pool of competent people from which he or she can constitute a Cabinet.
(b) They can provide for greater separation of powers between the legislative and executive branches of government.
(c) They can afford presidential aspirants enough time to identify potential ministerial appointees well before tripartite elections rather than waiting for parliamentary elections to be concluded. And
(d) They can reduce the apparent work overload on government officials who have to handle both ministerial and parliamentary functions.
6. Defence and National Security (Part XVI): There is a need to create an additional Article in this Part of the Bill relating to the Zambia National Service (ZNS).
Henry Kyambalesa
www.agenda123.com/
kyamba@zambia.co.zm
Sunday, 27 June 2010
Friday, 25 June 2010
FULL STATEMENT: CSOs RESPONSE TO THE LAUNCH OF THE NCC DRAFT CONSTITUTION
The Civil Society Organisations listed below, cautiously welcome the launch of the draft constitution and reports by the National Constitution Conference (NCC) for public comments. It is a trite fact that the constitution review process has unnecessarily been long and divisive- instead of rallying Zambians together around a common cause. It is a process where the interests of the general public, have been sacrificed at the altar of political expediency. It is our sincere hope therefore that the launch of the draft constitution and report will go a long way in uniting Zambians in coming up with a people-driven and people centred constitution. The Zambian people have long desired for a constitution that commands their respect and obedience, a constitution that addresses their aspirations for a fully democratic country- where the rule of law is paramount and the ordinary man and woman- recognized as full participants in national development. As Governance and Development CSOs, we have had our concerns and apprehensions about the whole process of adoption of the draft constitution via NCC and we have previously expressed our worry about the long delay in concluding this exercise – and we are still concerned about the prospects of Zambians going to the polls in 2011 on the current constitution knowing fully well the inadequacies of the electoral process and systems.
It is our intention to engage in this process mainly by sensitizing the general public on what the NCC is proposing and allow them to participate from a well informed basis. We will additionally continue to advocate for the adoption and enactment of a new constitution, which is anchored on commonly shared democratic principles. We do however, note with sadness some inadequacies in the whole process of receiving comments from the public and we are concerned that these could affect the participation of the majority of Zambians. Some of our observations are as follows:
1. The launch of the draft constitution and report took place without a prior notice. Indeed the public generally knew that the report would be launched soon but NCC should have taken a leaf from the Electoral Commission of Zambia which has been running public notices in the mass media to sensitise the public of the voters registration exercise. NCC, knowing fully well that the public only has 40 days to comment on the draft constitution, should have preceded the official launch with public sensitization – unless the intention is not to have as many people participating in this exercise;
2. There is an apparent lack of preparedness for this exercise and this can be illustrated by the fact that the launch to place at the time when Government Printers is still printing copies of the documents, all the websites mentioned had not uploaded the document for access by the public and the issue of translation is not yet decided. In the meantime, the countdown of the 40 days has begun. These are basic logistics which should have been put in place before the launch – and if people cannot yet access these documents – what was NCC launching?
3. It is a pity that translation of the draft constitution and report is not a given and contingent on availability of resources. NCC and the Government should have prioritized public participation as opposed to the largesse spent on endless sittings of the NCC. We are worried that this whole process will soon become exclusive and the preserve of the literate –and yet every Zambian should have a say on this important document and efforts should have made to ensure that this is possible.
4. It is our considered view that the NCC Chairperson should have taken advantage of the launch of the draft constitution, to equally avail to the public – a programme of how the NCC was going to facilitate public engagement in this process. For instance, is the NCC going to organize public meetings and if so- where and when? Further details should have been given on how rural areas which are far away from the district centres are going to access the documents. The question which still lingers is how will communities in the rural and remote areas participate in this process? Is the NCC in discussion with Churches, NGOs or other stakeholders working in these areas to reach out to these communities? Related to the above, it necessary that NCC indicates how many copies of the draft constitution and reports will be or has been sent to each district and how the people can access these copies.
5. Another issue of that requires clarification from the NCC is the manner in which differences between what the NCC is recommending and what the people and institutions who comment on the draft constitution and reports will be resolved. For instance, the NCC, in their draft constitution has proposed a minimum degree qualification for a prospective presidential candidate; assuming that the majority of the people and institutions (more than the numbers at the NCC) canvass for removal of this article- how will NCC handle this development? It is important that the process of reviewing and integrating the proposals from the public is made clear from the onset so that this does not turn out into an academic exercise where people take time to read the document and suggest changes and yet the NCC and Government remains adamant on what they would like to see in the final document.
6. Given the stage that this process has reached and some of the issues raised in the draft constitution, it is necessary for Government to present a full roadmap as to what will happen after 31 August 2010. There should be a sense of forward planning on the part of Government and thus ensure that this process does not stall after August 2010 but reaches its logical conclusion. Government, for instance, should consider appointing a Referendum Commission who should start working out modalities for a referendum as soon as possible. Such a step, will be a sign that Government really means well and that a new constitution is a possibility before the next elections.
In conclusion, we wish to underscore that these constitutional reforms should, at all cost, promote the common good and all those engaged in managing this process, should ensure that the final document that is adopted and a constitution bill subsequently enacted, is one that embodies the vision and aspirations of not just the current generation but even sets a foundation for generations to come. We do not want to see this process started all of over again in the next few years simply on grounds that partisan or sectarian interests were promoted as opposed to national interests.
Signed:
Caritas Zambia
SACCORD
TIZ
Citizens Forum
NGOCC
JCTR
CTPD
CSPR
ZCSD
It is our intention to engage in this process mainly by sensitizing the general public on what the NCC is proposing and allow them to participate from a well informed basis. We will additionally continue to advocate for the adoption and enactment of a new constitution, which is anchored on commonly shared democratic principles. We do however, note with sadness some inadequacies in the whole process of receiving comments from the public and we are concerned that these could affect the participation of the majority of Zambians. Some of our observations are as follows:
1. The launch of the draft constitution and report took place without a prior notice. Indeed the public generally knew that the report would be launched soon but NCC should have taken a leaf from the Electoral Commission of Zambia which has been running public notices in the mass media to sensitise the public of the voters registration exercise. NCC, knowing fully well that the public only has 40 days to comment on the draft constitution, should have preceded the official launch with public sensitization – unless the intention is not to have as many people participating in this exercise;
2. There is an apparent lack of preparedness for this exercise and this can be illustrated by the fact that the launch to place at the time when Government Printers is still printing copies of the documents, all the websites mentioned had not uploaded the document for access by the public and the issue of translation is not yet decided. In the meantime, the countdown of the 40 days has begun. These are basic logistics which should have been put in place before the launch – and if people cannot yet access these documents – what was NCC launching?
3. It is a pity that translation of the draft constitution and report is not a given and contingent on availability of resources. NCC and the Government should have prioritized public participation as opposed to the largesse spent on endless sittings of the NCC. We are worried that this whole process will soon become exclusive and the preserve of the literate –and yet every Zambian should have a say on this important document and efforts should have made to ensure that this is possible.
4. It is our considered view that the NCC Chairperson should have taken advantage of the launch of the draft constitution, to equally avail to the public – a programme of how the NCC was going to facilitate public engagement in this process. For instance, is the NCC going to organize public meetings and if so- where and when? Further details should have been given on how rural areas which are far away from the district centres are going to access the documents. The question which still lingers is how will communities in the rural and remote areas participate in this process? Is the NCC in discussion with Churches, NGOs or other stakeholders working in these areas to reach out to these communities? Related to the above, it necessary that NCC indicates how many copies of the draft constitution and reports will be or has been sent to each district and how the people can access these copies.
5. Another issue of that requires clarification from the NCC is the manner in which differences between what the NCC is recommending and what the people and institutions who comment on the draft constitution and reports will be resolved. For instance, the NCC, in their draft constitution has proposed a minimum degree qualification for a prospective presidential candidate; assuming that the majority of the people and institutions (more than the numbers at the NCC) canvass for removal of this article- how will NCC handle this development? It is important that the process of reviewing and integrating the proposals from the public is made clear from the onset so that this does not turn out into an academic exercise where people take time to read the document and suggest changes and yet the NCC and Government remains adamant on what they would like to see in the final document.
6. Given the stage that this process has reached and some of the issues raised in the draft constitution, it is necessary for Government to present a full roadmap as to what will happen after 31 August 2010. There should be a sense of forward planning on the part of Government and thus ensure that this process does not stall after August 2010 but reaches its logical conclusion. Government, for instance, should consider appointing a Referendum Commission who should start working out modalities for a referendum as soon as possible. Such a step, will be a sign that Government really means well and that a new constitution is a possibility before the next elections.
In conclusion, we wish to underscore that these constitutional reforms should, at all cost, promote the common good and all those engaged in managing this process, should ensure that the final document that is adopted and a constitution bill subsequently enacted, is one that embodies the vision and aspirations of not just the current generation but even sets a foundation for generations to come. We do not want to see this process started all of over again in the next few years simply on grounds that partisan or sectarian interests were promoted as opposed to national interests.
Signed:
Caritas Zambia
SACCORD
TIZ
Citizens Forum
NGOCC
JCTR
CTPD
CSPR
ZCSD
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